MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 

	BOARD DATE:.             3 June 1998
	DOCKET NUMBER:      AC97-05819

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  The following members, a quorum, were present:




	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that under current standards he would not receive a UD given his combat service and awards and decorations; that his ability to serve was impaired due to his youth, alcohol, and drug related problems; that after his Vietnam service he could not deal with stateside service; and that he is still proud of his combat service, particularly his Combat Infantryman’s Badge (CIB).

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant reenlisted for the period of service under review on 3 October 1969 while still in Vietnam.  At the time of his reenlistment the applicant had completed 1 year, 7 months, and 24 days of honorable military service; attained the rank of private first class/E-3; held military occupational specialty 11B (Infantryman); was parachutist qualified; and had earned the Vietnam Service Medal; the Combat Infantryman’s Badge; the Air Medal; and the Vietnam Campaign Medal.

The applicant’s record documents a history of disciplinary infractions for the period of service under review, which includes the applicant’s acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on three separate occasions.  Two of these NJP incidents were while the applicant was still in Vietnam.

On 26 January 1970 the applicant accepted an NJP for being AWOL for 4 days  from 21 to 25 January 1970.  The resultant punishment for this offense included a suspended reduction to the rank of private/E-2 and forfeiture of $38.00.  The suspended portion of the punishment concerning reduction was later vacated and the applicant was reduced effective 28 January 1970.

On 17 March 1970 the applicant accepted an NJP for sleeping while a perimeter sentinel on 15 March 1970.  His punishment for this offense included a suspended reduction to the rank of private/E-2; forfeiture of $43.00; and 14 days of restriction and extra duty.

On 29 July 1970 the applicant accepted another NJP for failing to go to his prescribed place of duty.  He was punished with a forfeiture of $96.00.



On 14 August 1970 the applicant went AWOL from Fort Bragg, North Carolina.  While in this AWOL status the applicant was arrested, tried, and convicted by civil authorities for worthless check forgery and uttering.  He was sentenced to 
7 years civil confinement.

The applicant was notified of the intent to eliminate him from the Army, under the provisions of AR 635-206, based on his civil conviction.  He acknowledged receipt of the notification of separation and completed his election of rights in which he indicated his understanding of the contemplated reason for his discharge. His completed election of rights documented the following decisions by the applicant: he waived consideration of his case before by a board of officers; he waived personal appearance before a board of officers; he waived representation by counsel; and he elected not to submit a statement on his own behalf.  The applicant also indicated he did not intend to appeal his conviction.

On 13 November 1972 the appropriate authority  directed the applicant’s discharge with a UD, under the provisions of AR 635-206.  Accordingly, on 
28 November 1972 the applicant was discharged after completing 10 months and 11 days of his current enlistment; a total of 2 years, 6 months, and 5 days of active military service; and accruing 731 days of time lost due to AWOL and civil confinement.

On 20 June 1975 the Army Discharge Review Board denied the applicant's request for an upgrade to his discharge and found that the discharge process was proper in all respects.

Army Regulation 635-206, then in effect, provided in pertinent part for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section III of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  There is no evidence to corroborate the applicant’s contentions that his youth and immaturity, alcohol and drug related problems; or inability to deal with stateside duty, impaired his ability to serve sufficiently to mitigate his misconduct. The evidence shows that the applicant was discharged, under the provisions of AR 635-206, for conviction by a civil court. 

2.  The applicant's discharge was appropriate because the quality of service at the time of discharge was determined to be inconsistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.   The conviction by civil authorities, to include denial of the appeal, obligated military authority to consider the applicant for discharge.  Because of the civilian conviction, the applicant diminished the quality of service below that meriting a fully honorable or general discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct.  The Board found the character of the discharge is commensurate with his overall record of service. 

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.  There is no evidence to suggest that applying current standards would have changed the outcome of the applicant’s discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




						Loren G. Harrell
						Director